Maintaining the status quo: protecting established water uses in the Pacific Northwest, despite the rules of prior appropriation.

• Author: Benson, Reed D.

1. INTRODUCTION

   For decades, water law in all four Pacific Northwest states (Washington, Oregon, Idaho, and Montana) has been based on the prior appropriation doctrine.(1) That doctrine has been a fixture in the western United States for over a century,(2) and the fundamental rules of water law based on prior appropriation are well established. These basic rules provide water users with a high degree of certainty and security, creating private property rights to use(3) a resource that is owned by the public,(4) but they also limit water use in some significant ways. For example, the traditional rules restrict where, when, how, and how much water may be used, and specify how water rights may be established and lost.(5)

   The Northwest's water resources and those who rely on them have come under increasing stress in recent years. Causes of this stress include overappropriation, drought, population growth, the decline of salmon and other fish populations, aquifer depletion, water quality impairment, assertion of tribal water rights, increasing competition for water supplies, public demands for environmental protection, and other factors.(6) These factors have helped create and exacerbate water conflicts, often forcing the states to face difficult issues they had long avoided.

   In facing these issues, the states commonly have not applied the traditional rules of western water law. Instead, states often have effectively waived or abandoned these rules in order to preserve existing water-use practices. State deference to existing water uses takes many forms, from silent yet unmistakable failures to enforce long-standing rules,(7) to changes in state statutes for the express purpose of allowing established uses to continue.(8)

   The accommodation of status quo water uses is now the overarching principle of Northwest water policy. Simply put, the Northwest states protect water users' established practices more faithfully than their legal rights. Where existing water uses are inconsistent with traditional rules of water law, the states have often bent, changed, or ignored those rules in order to preserve these established practices.(9) This unwritten policy favors those appropriators whose uses would be curtailed by a straightforward application of water law principles and disadvantages others, including other existing water users, prospective new users, and those interested in restoring instream flows, who would benefit if these principles were implemented.(10)

   Many of the traditional rules of western water law are fading in practical importance as legislatures, courts, and agencies protect existing water uses from the application of these rules. The states' policy of protecting existing uses seems to be based on considerations of politics, economics, and equity. But this policy may damage other water users, impair instream flows, limit economic opportunities, and ultimately create greater uncertainty about water use and management.

   This Article examines the unofficial status quo policy of the Northwest states. Part I provides a brief background on water use in the Northwest and on the traditional rules of western water law. Part II sets out the basic precepts that states follow to allow the continuation of existing uses, and identifies specific instances where states have protected the status quo by failing to enforce traditional water law rules, changing those rules, precluding state curtailment of ongoing uses, or insulating those uses from the effects of instream demands. Part III considers the implications of abandoning the traditional rules to preserve the status quo, discussing how this practice might change "winners" and "losers" among water interests and perpetuate economic concerns regarding water use. The Article concludes with an explanation of how the protection of status quo water uses may alter assumptions and arguments about future water policy for the Northwest.

   1. Water Use in the Northwest

      People not familiar with the Pacific Northwest, and even some who are, often believe the region is far wetter than it really is. The region's legendary rainfall is not evenly distributed, and the area east of the Cascades is typically quite dry.(11) In Idaho, average annual precipitation in the twenty inches.(12) Even west of the Cascades, where winter precipitation is generally abundant, many streams run short of water in the summer and fall. In the Dungeness and Quilcene basins on Washington's Olympic Peninsula, for example, low streamflows are a chronic problem.(13) Given the demands for water to meet existing and new uses, both instream and out-of-stream, most of the Northwest does not have enough water.(14)

      Irrigation is, by far, the dominant out-of-stream water use in the region. Irrigation accounts for over eighty-seven percent of total water withdrawals in the Northwest(15) and nearly ninety-seven percent of the region's water consumption.(16) The next largest water use, public supply, accounts for less than five percent of the withdrawals, while industrial withdrawals are less than three percent.(17) The percentages vary somewhat by state. In Idaho, for example, irrigation accounts for ninety-five percent of water withdrawals and livestock use exceeds public supply and industrial withdrawals combined.(18) In Washington, the most urbanized of the Northwest states, public supply makes up eleven percent of water withdrawals and industrial use more than six percent, but irrigation still exceeds seventy-six percent of total withdrawals.(19)

      Water withdrawals have sharply depleted stream flows in many Northwest rivers.(20) As in other parts of the West, state efforts to protect instream flows have been too little and too late to keep rivers from drying up.(21) Also, water diversions and low streamflows have seriously harmed fish and other aquatic and riparian organisms.(22) Inadequate instream flows related to water withdrawals are a continuing and significant problem for western rivers and aquatic ecosystems.(23)

      These water use patterns of the Northwest are not a recent development. They have been firmly established for decades, within the framework of state water laws based on the bedrock principles of the venerable prior appropriation doctrine. The following subsection briefly examines some of these principles.

   2. The Traditional Basic Rules of Western Water Law

      Western water law under the prior appropriation doctrine essentially is based on a handful of fundamental and long-standing rules. These few traditional rules are clearly established and simple to state, if not to apply. In general terms, these rules follow.

      1. State Control of Waters

         Perhaps the most basic rule of western water law is that the states control the use of water, which state laws declare to be a public resource.(24) States provide for private rights to use water, but those rights may be established only as authorized by the states.(25) Moreover, exercise of such rights is subject to state administration and enforcement.(26)

      2. State Approval of Water Rights

         The traditional steps needed to establish a water right are intent, diversion of water from its natural source, and application of water to a beneficial use.(27) Today, however, new appropriations may be made only on the basis of a permit issued by a state water resource agency.(28)

      3. First in Time, First in Right

         A water right's priority is based on the date of appropriation, and the oldest rights have the highest priority.(29) Where water is insufficient to satisfy all rights, junior appropriators' withdrawals are curtailed so that users with senior rights may continue to receive their full water supply.(30)

      4. Beneficial Use Without Waste

         Water may be appropriated only for a specified "beneficial use," and water rights authorize the use only of enough water to satisfy that beneficial use.(31) In addition, water uses must be reasonably efficient; no one has a legal right to "waste" water.(32)

      5. Appurtenancy

         Water rights usually specify a particular place, as well as type, of beneficial use.(33) In most states, water rights are appurtenant to a specific parcel of land,(34) and may not be used elsewhere without a transfer.(35)

      6. Conditional Transferability

         The holder of a water right may change its point of diversion, place, or purpose of use, but only with prior state approval.(36) Any such change, however, must not injure the rights of other appropriators,(37) whether junior or senior to the right being transferred.

      7. Use It or Lose It

         A water user may lose her water right by failing to exercise it, either by nonuse of water for a period of years (forfeiture)(38) or nonuse coupled with evidence of intent to abandon the right (abandonment)(39)

         The foregoing list does not attempt to identify all the rules of western water law, or provide a detailed analysis of individual rules. It does, however, provide a brief summary of the most fundamental and familiar points of the prior appropriation doctrine. In theory, these traditional rules form the basis of water law in the Northwest states. As the following section explains, however, these rules are often sacrificed for the protection of existing water uses.

2. THE STATUS QUO POLICY IN THE NORTHWEST

   The Northwest states remain officially committed to the prior appropriation doctrine.(40) In reality, however, the states often effectively waive the traditional rules where they threaten to curtail established water uses. States have routinely bent, changed, or ignored the traditional rules, through action or inaction, in order to maintain such uses. As a practical matter, water management in the region today is based less on strict prior appropriation principles than on protection of the status quo, that is, preservation of the water use practices, legal or not, that have become established in an area.

   "Where is the inconsistency?" the reader may ask. "Isn't prior appropriation itself based on protection of existing uses?" Certainly...